Monticello, October 15, 1824.
Dear Sir,
I have yet to thank you for your O. B. K. oration, delivered in presence of General la Fayette. It is all excellent, much of it sublimely so, well worthy of its author and his subject, of whom we may truly say, as was said of Germanicus, ‘Fruitur famâ sui.’
Your letter of September the 10th gave me the first information that mine to Major Cartwright had got into the newspapers; and the first notice, indeed, that he had received it. I was a stranger to his person, but not to his respectable and patriotic character. I received from him a long and interesting letter, and answered it with frankness, going without reserve into several subjects, to which his letter had led, but on which I did not suppose I was writing for the newspapers. The publication of a letter in such a case, without the consent of the writer, is not a fair practice.
The part which you quote, may draw on me the host of judges and divines. They may cavil, but cannot refute it. Those who read Prisot’s opinion with a candid view to understand, and not to chicane it, cannot mistake its meaning. The reports in the Year-books were taken very short. The opinions of the judges were written down sententiously, as notes or memoranda, and not with all the developement which they probably used in delivering them. Prisot’s opinion, to be fully expressed, should be thus paraphrased. ‘To such laws as those of holy church have recorded, and preserved in their ancient books and writings, it is proper for us to give credence; for so is, or so says, the common law, or law of the land, on which all manner of other laws rest for their authority, or are founded; that is to say, the common law, or the law of the land common to us all, and established by the authority of us all, is that from which is derived the authority of all other special and subordinate branches of law, such as the canon law, law merchant, law maritime, law of Gavelkind, Borough English, corporation laws, local customs and usages, to all of which the common law requires its judges to permit authority in the special or local cases belonging to them. The evidence of these laws is preserved in their ancient treatises, books, and writings, in like manner as our own common law itself is known, the text-of its original enactments having been long lost, and its substance only preserved in ancient and traditionary writings. And if it appears, from their ancient books, writings, and records, that the bishop, in this case, according to the rules prescribed by these authorities, has done what an ordinary would have done, in such case, then we should adjudge it good, otherwise not.’ To decide this question, they would have to turn to the ancient writings and records of the canon law, in which they would find evidence of the laws of advowsons, quare impedit, the duties of bishops and ordinaries, for which terms Prisot could never have meant to refer them to the Old or New Testament, les saincts scriptures, where surely they would not be found. A license which should permit ‘ancien scripture’ to be translated ‘holy scripture,’ annihilates at once all the evidence of language. With such a license, we might reverse the sixth commandment into ‘Thou shalt not omit murder.’ It would be the more extraordinary in this case, where the mistranslation was to effect the adoption of the whole code of the Jewish and Christian laws into the text of our statutes, to convert religious offences into temporal crimes, to make the breach of every religious precept a subject of indictment, submit the question of idolatry, for example, to the trial of a jury, and to a court, its punishment, to the third and fourth generation of the offender. Do we allow to our judges this lumping legislation?
The term ‘common law,’ although it has more than one meaning, is perfectly definite, secundum subjectam materiem. Its most probable origin was on the conquest of the Heptarchy by Alfred, and the amalgamation of their several codes of law into one, which became common to them all. The authentic text of these enactments has not been preserved; but their substance has been committed to many ancient books and writings, so faithfully as to have been deemed genuine from generation to generation, and obeyed as such by all. We have some fragments of them collected by Lambard, Wilkins, and others, but abounding with proofs of their spurious authenticity. Magna Charta is the earliest statute, the text of which has come down to us in an authentic form, and thence downward we have them entire. We do not know exactly when the common law and statute law, the lex scripta et non scripta, began to be contra-distinguished, so as to give a second acceptation to the former term; whether before or after Prisot’s day, at which time we know that nearly two centuries and a half of statutes were in preservation. In later times, on the introduction of the chancery branch of law, the term common law began to be used in a third sense, as the correlative of chancery law. This, however, having been long after Prisot’s time, could not have been the sense in which he used the term. He must have meant the ancient lex, non scripta, because, had he used it as inclusive of the lex scripta, he would have put his finger on the statute which had enjoined on the judges a deference to the laws of holy church. But no such statute existing, he must have referred to the common law in the sense of a lex non scripta. Whenever, then, the term common law is used in either of these senses, and it is never employed in any other, it is readily known in which of them by the context and subject matter under consideration; which, in the present case, leave no room for doubt. I do not remember the occasion which led me to take up this subject, while a practitioner of the law. But I know I went into it with all the research which a very copious law library enabled me to indulge; and I fear not for the accuracy of any of my quotations. The doctrine might be disproved by many other and different topics of reasoning; but having satisfied myself of the origin of the forgery, and found how, like a rolling snow-ball, it had gathered volume, I leave its further pursuit to those who need further proof, and perhaps I have already gone further than the feeble doubt you expressed might require, I salute you with great esteem and respect.
Th: Jefferson.
LETTER CLXXXIV.—TO JOSEPH C. CABELL, January 11, 1825
TO JOSEPH C. CABELL.